[2014] NSWCA 187

Karambelas v Zaknic

(1) Grant leave to appeal. (2) Costs of the application for leave to appeal will be costs in the proceedings in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords

PRACTICE AND PROCEDURE - application for leave to appeal - whether primary judge applied statute correctly - whether reasons for rejecting explanation for delay in making claim adequate - whether inconsistent decisions of court of appeal TORTS - motor accident claim - failure to make claim within six month period - whether full and satisfactory explanation given for delay - whether relevant delay from date of accident to making of claim or to date of court hearing - Motor Accidents Compensation Act 1999 (NSW), ss 66, 73

Cases cited

Mancini v Thompson[2002] NSWCA 38
Nominal Defendant v Browne[2013] NSWCA 197

Legislation cited

Motor Accidents Compensation Act 1999 (NSW), § 66, 72, 73

Judgment

[1]
BASTEN JA delivering the JUDGMENT of the COURT: This matter involves an application for leave to appeal from a judgment of Sorby DCJ in the District Court delivered on 6 December 2013. His Honour was considering an application to dismiss a statement of claim filed by a person injured in a motor accident. The basis of the application was that the plaintiff had not given a full and satisfactory explanation for the delay in making a claim under s 72 of the Motor Accidents Compensation Act 1999 (NSW).
[2]
The issue in dispute is whether, in considering if the explanation were full and satisfactory, the judge required that the explanation extend from the date of accident up until the date of the proceedings before him. He said in his judgment at par 22 that the length of the delay was four years and nine months, thus indicating a period up to the date of consideration by the Court. In fact the period from the date of accident to making the claim, was the six month period permitted by the section, together with a further ten and one-half months. It therefore appears that the trial judge may not have directed himself to the correct question to be determined in dismissing the proceedings.
[3]
The applicant submitted that there was a legal error, possibly due to a tension perceived between the definition in s 66 and the requirements of s 73(1) and (7) of the Motor Accidents Compensation Act. On one view there may also be a difference of approach revealed in the decisions of this Court in Mancini v Thompson [2002] NSWCA 38 and Nominal Defendant v Browne [2013] NSWCA 197; 64 MVR 214. Whether or not that is so, and it is a matter to which the applicant and the respondent should give some consideration, there does appear to have been a failure by the trial judge to comply with the principles as articulated in the latter case.
[4]
The applicant also submitted that the judgment below gave inadequate consideration to the substance of the explanations in fact given by the plaintiff and that the reasons given for rejecting the explanations as insufficient and inadequate, were themselves inadequate. Whether that is so or not requires reference to the material, including the evidence of the plaintiff before the primary judge. On its face, the judgment does not seem to do justice to the somewhat lengthy material provided both in writing and orally by the plaintiff.
[5]
Accordingly, it is appropriate that there be a grant of leave in this case. The parties are invited to consider whether there is a tension between the two judgments in this Court which might require the President to consider sitting five judges. The applicant is invited to consider whether the draft notice of appeal should be amended so that the grounds identify more succinctly and precisely the matters which were raised in the course of argument today.
[6]
The Court's orders are: (1) Grant leave to appeal. (2) Costs of the application for leave to appeal will be costs in the proceedings in this Court. 12 June 2014 - Amending initial of counsel Amended paragraphs: Coversheet